TV networks have been attacking the Hopper with great ardor in the past year. Fox and NBCUniversal sued the Hopper in 2012, asking a judge for an order to get the Hopper off the market while a trial was pending. The request for a preliminary injunction was denied in November, but the networks appealed. Now that appeal has been decided in Dish's favor.

Meanwhile, Fox celebrated the 2013 edition of the Hopper with a fiery court motion blasting the new box, insisting use of the device's features isn't "consumer place-shifting"—rather, "it is piracy."

At CBS, the legal department took the remarkable move of censoring its own news team in the name of fighting Dish. CNET editors chose the Hopper as the "Best in Show" at this year's CES convention, but that decision was squelched by CBS lawyers. The brouhaha resulted in CES taking the job away from CNET altogether and the resignation of a well-known CNET reporter.

The rhetoric may be getting hotter, but the ad-skipping DVR is going to stay on the market. The US Court of Appeals for the 9th Circuit upheld the lower court judge's decision to side with DISH, saying that Fox "had not established a likelihood of success on this claim." At the end of the day, the copies on a Hopper DVR are made "at the user's command," the three-judge panel noted. Even though many details of the copying are up to Dish—it's up to Dish how long the copies are kept, for example—they are still fundamentally copies made by the user, not by Dish.

Even better for Dish, the appeals court found that it's likely to succeed on a fair use defense. Dish customers make home, noncommercial copies, and those are legal—just like the home copies made on VCR tapes that were at issue in the famous 1984 Betamax case.

In one section, the court reminds Fox that the ads it is complaining about being skipped aren't even its own content:

Commercial-skipping does not implicate Fox’s copyright interest because Fox owns the copyrights to the television programs, not to the ads aired in the commercial breaks. If recording an entire copyrighted program is a fair use, the fact that viewers do not watch the ads not copyrighted by Fox cannot transform the recording into a copyright violation. Indeed, a recording made with PrimeTime Anytime still includes commercials; AutoHop simply skips those recorded commercials unless a viewer manually rewinds or fast-forwards into a commercial break. Thus, any analysis of the market harm should exclude consideration of AutoHop because ad-skipping does not implicate Fox’s copyright interests.

The lawsuit against Dish can still move forward, but in the meantime, the Hopper will remain on the market. The case is being litigated in a Los Angeles federal court.

“This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control," Dish's general counsel said in an e-mailed statement.

In a statement to The Wrap, Fox emphasized that there was a "very high" bar to win a preliminary injunction. The network added: "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract."

So it is okay for Dish to build a box that lets users copy network programming and play it somewhere else, but if someone -else- tries to do that with Dish programming, (even requiring customers to have a Dish account), Dish says "no way!"

Actually, I bought a JVC *VCR* that did this in 1998. After recording a show, it would (optionally) rewind to the beginning of the recording, scan through it about 4x real time, and mark the start and end of all the commercial breaks. It was pretty good at detecting them, even way back then. During playback, it would put up a blue screen for 20 seconds or so while it fast-forwarded through the commercials for you.

So are any of the networks going to follow through on their threats to rage quit the broadcast TV market if they lost, allowing the FCC to expand the planned 600mhz incentive auction downward into the 500 or 400mhz bands?

I've been using my htpc's to do this for a long while, record, strip commercials, transcode. The illegal approach is still faster, if I let sickbeard do it's thing I end up with shows before they air in my area and they're already transcoded and commercial-free. I just don't think there are enough people bypassing commercials for them to seriously consider taking a new approach to monetizing content... someday we'll get there, I hope.

The biggest problem that we have found is the the hour-long shows are done in 44 minutes. Which means that if you sit down at 9PM to watch, say, 'Under the Dome', then it is over at 9:44 and it is still 16 minutes until news time.

The second biggest issue is that we miss all of those 'coming soon' adverts so we miss all of the excitement over the coming soon TV.....

Which in turn has reduced our TV watching to about 8-10 hours / week in the winter and maybe 4-5 hours / week in the summer.

So are any of the networks going to follow through on their threats to rage quit the broadcast TV market if they lost, allowing the FCC to expand the planned 600mhz incentive auction downward into the 500 or 400mhz bands?

The rages are getting hard to keep up with

That threat came about with regards to a different case where the networks lost a PI motion (Aereo). But yeah, no one seems to be walking away from the market quite yet.

So are any of the networks going to follow through on their threats to rage quit the broadcast TV market if they lost, allowing the FCC to expand the planned 600mhz incentive auction downward into the 500 or 400mhz bands?

This isn't the same lawsuit. This is about a local(to the user) DVR on Dish(which pays local TV channels to be allowed to retransmit their content) that skips commercials. The one you reference is Aereo, which is the tons of tiny antennas.

Actually, I bought a JVC *VCR* that did this in 1998. After recording a show, it would (optionally) rewind to the beginning of the recording, scan through it about 4x real time, and mark the start and end of all the commercial breaks. It was pretty good at detecting them, even way back then. During playback, it would put up a blue screen for 20 seconds or so while it fast-forwarded through the commercials for you.

Because the consumers 'choice' is to skip commercials with a technological advance called a 'skip' button.

Well, Fox's more precise butthurt is that you only have to hit that skip button once, when you start playback, and then labels that as being "automatic." They're trying to paint it as a copyright case because what this is really about, a potential loss in advertising revenue as advertisers recognize that the only true value in network advertising is when it's watched live. Not that Fox isn't willing to cheapen their program by involving blatant product placement in their programming...

Quote:

Quote:

It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract."

Even though our copyrighted shows are being watched in their entirety without change and the commercials being skipped aren't our copyright,

And furthermore the Auto-Hop feature is voluntarily (by Dish) limited in two fashions. First, it cannot be used within 24h of the actual recorded program. Second, it must be explicitly enabled by the user each time it's played back. So, what's happening is that the end-user is electing to skip commercials which I believe the courts will find completely indistinct from fast forwarding the recorded video.

And furthermore the Auto-Hop feature is voluntarily (by Dish) limited in two fashions. First, it cannot be used within 24h of the actual recorded program. Second, it must be explicitly enabled by the user each time it's played back. So, what's happening is that the end-user is electing to skip commercials which I believe the courts will find completely indistinct from fast forwarding the recorded video.

Glad to see the courts (so far) putting Fox in its place. Still sucks that such a good product has to be made worse to evade ridiculously over-broad application of copyright law.

Reminds me of the forward skip button (separate from fast forward) on DVRs I had over the years. The first one (Dish, 15+ years back) actually jumped ~30 seconds forward. Great at its obvious job, skipping commercials. My second one (Time Warner) didn't even have a skip button. And the third (DirecTV) has a "skip" button that actually just fast forwards ~30 seconds - and not even at the fastest speed. So lame.

Also note all the silly things they add to try to get viewers to watch shows live, like "additional content available during the show."

Is Dish stupid? Yeah great way to keep content when that next renewal contract comes up. I am sure the content providers are just going to line up to give you a deal now. No wonder they tried so hard to buy sprint since they just waived good buy to their Sat TV business.

All of the relevant features only work on the four OTA local content networks: Fox, CBS, ABC, and NBC. It's the local providers that Dish negotiates with to provide this content. Sometimes, there's a contract dispute that drags on beyond existing contract terms, but if a local wanted to drop service to Dish, then all Dish would do is run a non-local network in its place for that region's customers. So, a local carrier would lose income from the Dish contract, lose trackable viewership to OTA viewing, and devalue their own local advertising.

But I'm sure those networks are eager to drop 14 million viewers over an OTA-specific feature...

Cool, now we can all watch our favorite programming on our phones while sitting on a reclining toilet, *As Seen on TV*.

I'm a big fan of the "Dish anywhere" thing (though in places other than a reclining toilet). Is the Dish anywhere part of this lawsuit? The ruling quoted in the story makes it sound like it's just the auto-hop commercial skipping at issue. Dish has been pretty innovative with their products (though sometimes promising more than they could deliver), and I think they really got it right with the Hopper. Sadly, but not surprisingly, they are not so welcoming of innovation from others, like NimbleTV as t_newt mentioned above. Media companies all have this mind set that absolute control is paramount, even when common sense would indicate a third-party service would generate more, not fewer, customers.

Is Dish stupid? Yeah great way to keep content when that next renewal contract comes up. I am sure the content providers are just going to line up to give you a deal now. No wonder they tried so hard to buy sprint since they just waived good buy to their Sat TV business.

Dish didn't try hard to buy Sprint. They had the resources to outbid SoftBank if they wanted to. What they were doing was protecting their own spectrum holdings from being devalued if SoftBank snagged Sprint at what Dish believed was below market value.

You make a good point about the renewal issue. As pissed as Fox may get, however, not all those subscribers come back if they don't renew. And even if they do sink Dish I think there would be a lot of negative push back and cord cutting. The risks are real enough that they need to tread lightly. But since this is Fox, we already know they won't.

Is Dish stupid? Yeah great way to keep content when that next renewal contract comes up. I am sure the content providers are just going to line up to give you a deal now. No wonder they tried so hard to buy sprint since they just waived good buy to their Sat TV business.

So by following the silly TV network logic you could say that if you don't watch the TV while they show the commercials you are actually violating copyright law, you starve content producers and probably contribute to terrorism... somewhere, somehow. (what a load of...bull.) Recording shows without ads has been done since the VCR era switching to a device that does it for you automatically is just progress nothing has really changed the networks are still profitable and will be. They should stop their whining.

Over here in the UK we are lucky to have non commercial BBC, it's the only channel we watch live. The rest are recorded and fast forwarded through ads. I think the future of ad paid for commercial TV as we know it is bleak.

Uh sorry, but the Hopper doesn't skip commercials. It has a fast forward button that skips up to 30 seconds of recorded video. Commercials are still recorded but you can't skip them. You can skip around 30 seconds at a time, which also applies to the show that you actually recorded. I wish people would get the facts straight.

Is Dish stupid? Yeah great way to keep content when that next renewal contract comes up. I am sure the content providers are just going to line up to give you a deal now. No wonder they tried so hard to buy sprint since they just waived good buy to their Sat TV business.

The problem is that Dish does not have to negotiate with the networks to get their aired content. There is a compulsory license in place meaning that satelite and cable vendors pay a fee to rebroadcast the local air content. This is why the big 4 are so butthurt with Aereo. Way back when cable first started, much like Aereo, they had an antenna that captured the on-air broadcasts and retransmitted it. When the the broadcasters complained Congress instituted the compulsory license scheme (see section 111 of the copyright act). All Dish has to do is comply with section 111 and pay their dues and they can get the on-air programming legally.

Is Dish stupid? Yeah great way to keep content when that next renewal contract comes up. I am sure the content providers are just going to line up to give you a deal now. No wonder they tried so hard to buy sprint since they just waived good buy to their Sat TV business.

Dish didn't try hard to buy Sprint. They had the resources to outbid SoftBank if they wanted to. What they were doing was protecting their own spectrum holdings from being devalued if SoftBank snagged Sprint at what Dish believed was below market value.

You make a good point about the renewal issue. As pissed as Fox may get, however, not all those subscribers come back if they don't renew. And even if they do sink Dish I think there would be a lot of negative push back and cord cutting. The risks are real enough that they need to tread lightly. But since this is Fox, we already know they won't.

Nope I don't think there is a good point about the renewal issue. Fox can't sink dish, neither can CBS, NBC, or ABC. Major networks do not have the same clout they had in years past. For instance, if Fox would pull out of the Dish Network market I wouldn't drop Dish. That would be stupid. I would just put up a small digital tv antenna and receive Fox programs to watch that way and there's not a thing one Fox could do about it, also I could still skip their advertisements.

Uh sorry, but the Hopper doesn't skip commercials. It has a fast forward button that skips up to 30 seconds of recorded video. Commercials are still recorded but you can't skip them. You can skip around 30 seconds at a time, which also applies to the show that you actually recorded. I wish people would get the facts straight.

What difference does that make? It must not matter at all since it hasn't been brought up in the article. It could easily be made to skip commercials only. Anyway that is what it's used for and as far as I'm concerned, if it's a paid service you should not be forced to watch advertisements at all.

I get that the networks are afraid they're going to lose revenue if advertisers think their ads aren't being viewed on TV anymore, but isn't that already happening? I do most of my TV watching on Netflix and Hulu. I have super basic cable so I can watch local programming like sports and news (digital OTA in my area is a joke) so I maybe watch 2 hours of live TV a week. More during football season. Most of my ad viewing is done while I'm on the computer, and it's the same way with most of my friends. We all pretty much cut the cord and don't bother with live TV anymore.

So while I understand why the networks are worried about losing those eyes on the ads even in recorded viewing, they should probably start looking for other ways to make up that revenue. Because they've already lost a lot to on demand services.

Of course that probably means they'll find new ways to gouge customers.